Environmental Engineering Reference
In-Depth Information
3.7.10 Assessment Results of Investment Protection
Overall, the Desertec Concept is within the scope of the ICSID Convention and its
protection of investments. This also includes the applicability of the G/M-BIT as a
basis to formulate any claims. Both parties must negotiate and conclude their
contracts in a careful way. The state contract and the concession contract in
particular need a lot of work. In both cases, it is important to clarify the parties to
it. Application of the umbrella clause and the question of contract claims make it
necessary to know the exact parties of each contract. Furthermore, it is of great
relevance that both contractors include the exact obligations of an investor. As
shown above, this forms a part of the acceptance as an investment. It would be
wrong to claim that a previous review of all possibilities can happen. In 2010, one
ICSID tribunal pointed out that there is still no universal approach so far concerning
the notion of investment.
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This remains one of the biggest problems of investment
law besides the question of stare decisis.
Although there seems to have been a decrease in the application of a strict Salini
test, the risk remains. Thereby the risk is not the test itself, but the fact that no-one
really knows the prerequisites for the different elements. The study above illustrates
that the Desertec Concept is an investment according to the strictest application of
the Salini test. It is not possible to identify and solve all of the remaining uncer-
tainties. This is mostly due to the unpredictability of the ICSID tribunals
setup and
their interpretation of the BIT and the ICSID Convention. Hence, a lot of facts are in
favor of the Desertec Concept.
One of the main points which can influence the outcome of any ICSID proceed-
ing is the behavior of the investor and the state. The state, in this case Morocco,
should avoid using purely nationalist reasons to “influence” the project. ICSID case
law revealed that an abuse never pays off for any party. Concerning the Desertec
Concept, the investor has an even greater potential to influence arbitration. Art. 12
(d) of the MIGA Convention as well as the parts of the literature mentioned that the
behavior of the investor can be decisive for the element of contribution to the
economic development of the host state. Therefore, an investor must stick to its
promises. Besides the fact that different behavior could cause serious problems
related to the acceptance of the project, it can be decisive for arbitration. Since the
Desertec Concept is a new and unknown project in ICSID history, there is great
chance that the ICSID might assess it in a more detailed way. Hence, it is up to the
investor how the tribunal might treat the investment. In summary, the Desertec
Concept is an investment according to all approaches taken by ICSID tribunals. In
the case of a strict objective approach, it is within the investor
'
s sphere of influence,
if the investment is according to the BIT and the ICSID Convention ICSID
jurisdiction. Nevertheless, the project still depends on a lot of support from third
countries or institutions like the EU or the UM.
'
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ICSID [2010] ARB/07/20—Award, 32 para 97.
